About Jackie

As antitrust counsel, Jackie Java represents companies in all antitrust aspects of mergers and acquisitions, from initial antitrust analyses and the preparation of Hart­-Scott-­Rodino filings, through government investigations and Second Requests. She frequently counsels clients on the competitive implications of proposed transactions and strategies for obtaining regulatory clearance. Jackie has counseled many clients on the antitrust pitfalls associated with due diligence and integration planning in connection with mergers, particularly where the parties operate in highly concentrated industries. She has also assisted with filings required by foreign antitrust authorities. Jackie was part of the Bracewell antitrust team recognized by Legalease’s The Legal 500 United States in Antitrust-Merger Control (2017-2018).

Jackie also advises clients involved in transactions and day-­to-­day operations that raise antitrust issues regarding interactions among competitors, the formation of joint ventures, distribution and pricing policies and programs, information exchanges, and allegations of price fixing, market allocation, and other anticompetitive practices. Jackie is particularly experienced in managing complex relationships in industries where companies simultaneously act as competitors, customers and collaborators. Jackie is also experienced in developing and implementing industry-specific antitrust training and compliance programs. In addition, she serves as antitrust counsel to trade associations, informal groups seeking to establish trade associations and clients seeking to participate in information exchanges or third­-party industry studies.

As antitrust counsel, Jackie represents clients in many industries. She has particular experience with energy­-related businesses, including power generation, pipeline transportation and storage, natural gas and power trading, oil and gas field services and bulk liquids storage.

Experience

Recent Notable Matters

East Texas Medical Center Healthcare System — sale of substantially all assets to Ardent Health Services, including a network of 9 hospitals, 39 clinics, 2 inpatient facilities, 13 regional rehabilitation facilities, physician clinics, 2 emergency centers, regional home health services covering 41 counties, a comprehensive seven-trauma center care network, and an EMS fleet of more than 45 ambulances and 4 helicopters. In connection with the acquisition, Ardent and The UT Health Science Center formed a partnership and will invest more than $125 million in the new UT Health East Texas health system to support operations and fund improvements.

Holly Energy Partners, L.P. — $250 million acquisition from Plains All American Pipeline, L.P. of the 50 percent and 75 percent interest in Frontier Aspen LLC and SLC Pipeline LLC, respectively, that Holly Energy Partners does not already own

Great Plains Energy Incorporated — stock-for-stock merger of equals transaction with Westar Energy, Inc., creating a company with a combined equity value of approximately $14 billion, and with nearly 13,000 MW of generation capacity and more than 51,000 miles of distribution lines

Chevron Corporation — sale to ONEOK Partners, LP of the Mesquite Pipeline and its 80% interest in the West Texas LPG Pipeline Limited Partnership for approximately $800 million

Duke Energy Corporation — $2.8 billion sale of its Midwest merchant generation business to a subsidiary of Dynegy Inc., which includes ownership interests in 11 power plants with a total capacity of approximately 6,100 MW, as well as Duke’s competitive retail electric and gas business; Platts Global Energy Awards, 2015 Strategic Deal of the Year

Apache Corporation — $7 billion acquisition of BP’s oil and gas operations, acreage and infrastructure in the Permian Basin of West Texas and New Mexico and in Egypt's Western Desert, as well as BP’s upstream natural gas business in western Alberta and British Columbia

On July 20, 2015, the Federal Trade Commission (FTC) released revisions to its interpretation of the rule, 16 C.F.R. §802.5, that exempts certain acquisitions of "investment rental property assets" from reportability under the Hart-Scott-Rodino (HSR) Act. The HSR Act requires that mergers and acquisitions exceeding certain...

On August 7, 2012, U.S. District Judge William H. Pauley III granted the Department of Justice Antitrust Division's (DOJ) motion for entry of a consent decree requiring Morgan Stanley to disgorge $4.8 million for its role in an allegedly illegal swap agreement that allowed KeySpan Corporation (KeySpan) to manipulate energy prices in the New York City electric generating capacity market (see Memorandum & Order , U.S. v. Morgan Stanley, Case No. 1:11-cv-06875 (S.D.N.Y., Aug 7, 2012)). As explained in previous blog entries in February 2010 and February 2011 , a financial swap agreement...

On February 16, 2012, FERC issued an order ( February 16 Order ) reaffirming its existing merger review policies under Section 203 of the Federal Power Act (FPA) and its current framework for analyzing requests for market-based rate authority under section 205 of the FPA. In March of last year, FERC had sought comment in a Notice of Inquiry (NOI) on whether it should amend its existing policies in these two areas in light of new Horizontal Merger Guidelines (2010 HMG) issued jointly by the Federal Trade Commission (FTC) and Department of Justice (DOJ) on August 19, 2010. The NOI explained...

Another class action lawsuit has been filed against KeySpan Corporation (KeySpan) and Morgan Stanley Capital Group Inc. (Morgan Stanley), claiming damages for antitrust violations resulting from an allegedly illegal swap agreement that allowed KeySpan to manipulate energy prices in the New York City electric generating capacity market (NYC Capacity Market), see Konefsky et al. v. KeySpan Corp., et al ., Case No. 1:12-cv-00017. The complaint was filed on January 6, 2012 in the U.S. District Court for the Western District of New York on behalf of electric customers of National Grid, which...

Balking at Governor Mitt Romney's opposition, members of the Massachusetts legislature recently introduced a petition for legislation to reduce carbon dioxide emissions in Massachusetts through participation in the Regional Greenhouse Gas Initiative (RGGI) , a regional cap-and-trade program intended to reduce greenhouse gases in the Northeast. However, because of concerns over the program's effect on electricity prices, it is questionable whether the bill can be passed before the state legislative session ends in July 2. A two-thirds majority vote of the legislators would be needed to...

National Grid USA (National Grid) announced its proposed acquisition of Keyspan , the largest distributor of natural gas in the Northeast and New York state's largest electricity generator. At the completion of the merger, National Grid will have a combined 3.4 million natural gas customers and 8 million electric consumers in the New York and New England area. Keyspan will continue to operate in its own name, although it will be a wholly owned subsidiary of National Grid. The companies have targeted to close the transaction by early 2007. This announcement comes on the heels of Exelon's...

In the midst of a rushed close to Congress, a morass of media coverage concerning the war in Iraq, exploding lobbying scandals in D.C., and the coming holiday season, on December 14th the House of Representatives quietly passed a bill that may substantially impact energy markets. The legislation, H.R. 4473 , is usually described as legislation to reauthorize the Commodity Future Trading Commission (CFTC) , but in reality it represents much more than an extension of the status quo. H.R. 4473 includes a number of measures that should be controversial. The language of the legislation would...

Earlier this month, Illinois Governor Rod Blagojevich (D) announced he would mandate reductions in mercury emissions from the state's 22 coal-fired power plants by 90 percent by June 30, 2009, joining Connecticut, New Jersey, Maryland, Massachusetts, Minnesota, North Carolina and Wisconsin, in calling for mercury reductions stricter than those called for by the U.S. Environmental Protection Agency in its March 10, 2005 Clean Air Mercury Rule . The EPA Rule calls for reductions of 47 percent by 2010 and 79 percent by 2018. Power plants emit approximately 43 percent of mercury emissions in the...

Rhode Island Governor Donald L. Carcieri (R) issued an executive order in mid-January creating the Office of Chief Energy Advisor to the Governor, and named Andrew Dzykewicz, Senior Project Manger at the Rhode Island Economic Development Corporation (RIEDC) , to fill this new role. Mr. Dzykewicz will be responsible for coordinating tiny Rhode Island's energy policy, and one of the first tasks assigned to the new Advisor is to oversee the enactment of a five-point energy agenda intended to assist in accessing affordable energy supplies and increasing energy conservation. The Governor's five-...

Finding that a power-supply emergency existed in the Washington, DC area, Secretary of Energy Bodman on December 20 issued an emergency order directing Mirant to continue to operate its Potomac River, 482-MW power plant. The plant had stopped operations to avoid violating its air quality permit. Secretary Bodman explained that, absent the Potomac River plant, should either of Potomac Electric Power Company's (Pepco) 230-kV lines become unavailable, power supply to the Capital would be in jeopardy. Following the Secretary, in a January 9 order FERC ordered PJM Interconnection L.L.C. (PJM) and...

After pulling out of the Regional Greenhouse Gas Initiative (RGGI) earlier this month, Massachusetts Gov. Mitt Romney (R) announced that the Bay State would pursue its own new carbon dioxide emissions (CO2) reduction plan. The reductions go into effect January 1, 2006, but power generators will not be required to comply until 2007. In particular, the plan targets Massachusetts' six oldest coal- and oil-fired power plants. It calls for generators to cap emissions at 1997-99 levels, and includes a production limit of 1800 pounds/MWh. The Governor's plan allows generators to meet limits by...

Strange bedfellows, the Interstate Natural Gas Association of America ("INGAA") and the Natural Gas Supply Association ("NGSA"), together petitioned FERC to initiate a rulemaking to re-examine the parameters of blanket certificate authority and to make clear to the marketplace that shippers who make projects financially possible may enjoy preferential rates. The petitioners explained that to ensure the adequacy of pipeline infrastructure in the future, FERC must act to make it easier for the industry to build capacity. Specifically, the INGAA and NGSA suggested that FERC permit blanket...

Both California and Pennsylvania recently put forward energy plans that are likely to speed implementation of highly efficient and low-polluting technologies for generating electricity from gasified coal. The 2005 Integrated Energy Policy that the California Energy Commission ("CEC") adopted at the end of November would indirectly have this effect by requiring the Golden State's utilities to procure power only from generating stations that meet Governor Schwarzenegger's (R) greenhouse gas ("GHG") performance standards, which integrated gasification combined cycle ("IGCC") units can but...

Earlier this month, Maryland Governor Erlich (R) proposed the Maryland Clean Power Rule ("MCP Rule"), which would mandate constant emission controls and greatly diminish nitrogen oxide (NOx), sulfur dioxide (SO2) and mercury emissions from Maryland power plants, years ahead of the U.S. Environmental Protection Agency's Clean Air Interstate Rule (CAIR) and Clean Air Mercury Rule. Under the MCP Rule, by 2010, NOx emissions would be reduced by 45,000 tons per year (69%); SO2 emissions would be reduced by 205,000 tons per year (85%); and mercury emissions would be reduced by 1,400 pounds per year...

FERC asked on November 21 whether it should repeal its Market Behavior Rules in light of its new authority under the Energy Policy Act of 2005 (EPAct 2005) to prevent market manipulation. FERC adopted the Market Behavior Rules approximately two years ago, and required them to be a part of all electric and gas market-based rate tariffs, in an effort to curb market manipulation. The cornerstone is Market Behavior Rule 2, which prohibits "actions or transactions that are without a legitimate business purpose and that are intended to or foreseeably could manipulate market prices, market...

In a November 18 notice of rulemaking FERC proposes to implement the incentives mandated in the Domenici-Barton Energy Policy Act of 2005 (EPAct 2005) for investing in electric transmission infrastructure that benefit consumers by increasing grid reliability and reducing the transmission costs caused by congestion. The rulemaking posits that Transcos "” stand-alone companies that sell transmission services at wholesale or otherwise unbundled from retail electricity sales "” are the preferred vehicle through which transmission investments are made and, accordingly proposes additional financial...

Congress in the Domenici-Barton Energy Policy Act of 2005 (EPAct 2005) and FERC in proposed implementing regulations looked to the Securities Exchange Act of 1934 and its anti-fraud provisions to put in place parallel new prohibitions against and heightened penalties for manipulation and deception in connection with the wholesale natural gas and power transactions that FERC regulates. [See FERC Looks to Past for Future Anti-fraud Enforcement and FERC Explains Its Policy on New Penalty Authority ] Not surprisingly, in a November 18 interpretation of its rules, FERC has looked again to the...

California voters affirmed they support competition in the state's energy markets. In the latest election, approximately 65% of voters opposed a ballot initiative that would have banned retail choice, increased state oversight of utilities, and eliminated direct access for those customers not already in the state's program. The Utility Reform Network sponsored Proposition 80 , arguing that it was needed to replace failed deregulation policies and to prevent market manipulation, price spikes, and rolling blackouts in the future. Had it been accepted, the initiative would have allowed for...

In an effort to improve the country's ability to respond to future energy-related supply problems and to keep the general public informed on the current state of natural gas trading, the Department of Energy's Office of Fossil Energy ("OFE") has added a new monthly reporting requirement to existing and future Orders authorizing the import and export of natural gas and liquefied natural gas ("LNG"). The first monthly report, for the reporting period November 1, 2005, through November 30, 2005, must be filed no later than December 30, 2005, and can be filed electronically through OFE's website...

Using bonds issued through the state's mineral trust fund, the Wyoming Infrastructure Authority ("WIA") recently financed its first power line project, the Basin Electric Power Cooperative's 130-mile $50 million 230-kilovolt transmission line to be located in northeastern Wyoming. The Basin Electric project "” the first step in WIA's forecasted 500 miles of needed transmission "” is expected to deliver power within the state and facilitate exports to neighboring California, Colorado and Utah. The circuit on the Basin Electric project is anticipated close by the end of 2008. The WIA's charter...

In one of its latest move to implement the EPAct of 2005 , FERC, on October 3, 2005, issued a notice of proposed rulemaking (NOPR) that proposes amendments to its merger policy regulations, in accordance with the EPAct amendments to section 203 of the Federal Power Act. To be considered by the agency, public comments on the NOPR are due November 7, 2005. Section 203 is the provision that requires FERC's authorization for certain mergers, acquisitions, and dispositions of jurisdictional assets. Currently, FERC focuses on three major factors when analyzing whether a proposed transaction is...

In a recent report released to the Governor and to the state General Assembly, the Pennsylvania Public Utility Commission ("PAPUC") concluded that competition in the Pennsylvania retail natural gas supply market simply does not exist. This, of course, is not good news for ratepayers who are watching prices skyrocket due to increased demand worldwide as well as the effects of recent hurricanes on transportation and distribution lines in the South. As a result of its findings, the PAPUC has determined that it will convene natural gas industry stakeholders to examine ways to increase competition...

After rejecting two similar projects in or near their state, Rhode Island officials made clear in recent weeks that AES Corp.'s latest proposal to build a new liquefied natural gas ("LNG") facility on an island in Boston Harbor met with their approval. Reportedly, AES Corp. is considering leasing Outer Brewster Island, a state-owned island eight miles from the Boston shoreline, in the hopes of building a new LNG facility there. Rhode Island's support of an Outer Brewster Island facility stands in sharp contrast to its vehement opposition to two other projects in the area, the Weavers Cove...

Not only did FERC affirm its staff's findings that in recent years MidAmerican Energy Co. persistently had violated core provisions of its open-access transmission tariff, but in a September 29 order FERC pursued unique remedies against MidAmerican "• remedies that underscore the premium that FERC places on improvements to the transmission grid. The violations were documented in an audit, from January 1, 2002, through April 30, 2004, of MidAmerican's compliance with its open-access transmission tariff provisions relating to interconnection and transmission services, Standards of Conduct,...

FERC took the unusual step on September 26 of releasing publicly a staff report on a confidential investigation of bidding behavior by importers at the interties into the California Independent System Operator ("CAISO") control area. The report cleared Powerex, the power marketing affiliate of BC Hydro, of any wrongdoing and found that the problems with bidding at the CAISO's interties were a product of the CAISO's tariff and not any impropriety. In releasing the Staff report, FERC said it hoped to clear up confusion regarding its Market Behavior Rule 2, which prohibits market manipulation,...

The American Wind Energy Association ("AWEA") and the North American Electric Reliability Council ("NERC") asked FERC to accept their settlement on technical standards regarding wind generator interconnections, avoiding the public battle over reliability that was threatened when NERC complained that standards FERC previously proposed posed an "unacceptable risk to the reliability of the bulk electric system." In response to a 2004 petition for rulemaking from AWEA, FERC had adopted a rule allowing asynchronous generators such as wind plants to disconnect from the grid when voltage at the...

FERC recently issued a notice of inquiry asking for ideas on how to close the existing regulatory loophole that allows offshore natural gas gatherers to escape regulation. Under current law, these gatherers fall outside of FERC's jurisdiction once they are spun off from interstate pipelines, as many were during 1990s. Nor are these spun-off gatherers subject to state regulation. Over the past few years, FERC has invoked various legal theories and statutes, including provisions of the Natural Gas Act and the Outer Continental Shelf Lands Act, to impose regulated rates on gatherers. But the...

Last week FERC Chair Joe Kelliher announced that his agency will soon explore ways to induce transmission investment. The Domenici-Barton Energy Policy Act of 2005 ("EPAct 2005") directs FERC to issue a rule establishing transmission incentive rates within one year of EPAct 2005's August 8 enactment. The investment initiative will proceed "in tandem" with FERC's just-announced proposal to update its Order No. 888 open-access transmission tariff. [ See FERC to Reprise Open Access Nearly Ten Years after Its Launch ]. It would be the latest iteration of an evolving approach to FERC's...

In a September 19 order FERC rejected as "inadequate" Southwest Power Pool's ("SPP") proposal to implement a real-time energy imbalance market, along with its market monitoring and market power mitigation plans. FERC was primarily concerned that the imbalance market was not designed or would not be monitored properly to ensure stable market operation and laid out guidance for SPP in several critical areas. FERC also rejected SPP's attempts to justify various tariff revisions as the result of its stakeholder process, saying that "SPP is ultimately responsible for the stable operation of its...

In early September, Entergy asked FERC to confirm that if Entergy stops pay ing itself for reactive power, then the New Orleans-based utility can refuse to pay non-affiliated generators for reactive power. A generator is obligated to maintain reactive power within a specified bandwidth as a condition of its interconnecting with the transmission provider's system, and is not owed any compensation so long as Entergy does not pay itself or its affiliates for providing the same service. Unanswered is why Entergy until now has paid itself and its affiliates for reactive power. Apparently expecting...

Both the Weaver's Cove Fall River, Massachusetts project and the now-three LNG projects proposed for Maine's Passamaquoddy Bay continue to battle local and regional opposition. Recently, the Aquidneck Island Planning Commission took delivery of two commissioned reports that predicted that the Weaver's Cove LNG project would cause major traffic backups and hurt Rhode Island's marine and tourism economies. Weaver's Cove has stated that the reports were based on flawed assumptions. Weaver's Cove earlier this month also saw Mass. Governor Mitch Romney notify FERC of changed conditions surrounding...

Joining the growing number of states embracing Renewable Portfolio Standards ("RPS"), both Rhode Island and Wisconsin have begun to assess the potential benefits of and need for renewables to power their states. The Rhode Island Public Utilities Commission is reviewing a stakeholder group proposal that recommends the state begin enforcing an RPS in 2007 requiring both utilities and retail marketers to obtain 3% of their power supply from renewables. Under this proposal, utilities would be allowed rate recovery of all associated costs other than non-compliance penalties. Renewable power...

Apprehension over the effect of the Exelon-PSEG merger continues, as the New Jersey Board of Public Utilities ("NJBPU"), along with several other regional interests, including New Jersey's Ratepayer Advocate and Pennsylvania's Office of the Consumer Advocate, asked FERC to rehear its July 1 order approving the merger and instead set the merger for hearing. The NJBPU argues in its request that FERC violated Section 203 of the Federal Power Act ("FPA") by failing to determine affirmatively that the merger is in the public interest in advance of authorizing the transaction. Instead, complained...

Xcel Energy Services recently became the latest integrated utility to abandon efforts to convince FERC that it lacks generation market power in its control area and thereby surrender its authorization to make control-area power wholesales at market rather than cost-based prices. Entergy made the same decision in July, as did AEP earlier this year. (See Entergy Will Not Renew Market-Based Rate Authority, August 2, 2005). Motivating this retreat is recognition that these large regional utilities are unlikely ever to convince regulators that they have adequately mitigated their generation market...

A federal appeals court recently reversed a FERC order on pricing arrangements in a congested area of ISO-NE region because of the agency's failure to respond to reasonable objections to its mercurial policies on pricing. The opinion demonstrates that the agency's abrupt policy changes will not withstand appellate scrutiny where FERC fails to resolve reasonable objections by appellants. FERC's order concerned the ongoing attempts to devise an appropriate mechanism for compensating generators in a congested area of southwest Connecticut in which there is a risk of generator market power. As...

Controversial Proposition 80 , which seeks to re-regulate California's electricity market, should be put to a vote in the upcoming November 8 elections, according to the Golden State's highest court. The court's decision overturns a July 22 ruling of a lower court that would have kept Proposition 80 off of the ballot. The lower court ruled that Proposition 80 was unconstitutional on its face because it would expand the authority of the California Public Utilities Commission ("CPUC") to regulate the energy industry, a role that the court found to be reserved for the California Legislature...

Texas Governor Rick Perry has signed legislation requiring increased development of renewable energy in Texas. The legislation requires the installation of another 3,000 MW of renewable energy on top of current Texas law requirements. Texas has taken a different approach in mandating renewable energy development compared to other states. Most states with renewable energy portfolio legislation require load-servers to include a given percentage of renewable energy in the energy they provide to retail consumers. Texas, however, mandates the construction of certain amounts of renewable energy. As...

Early in April, the Sunflower State followed Wyoming's lead in the creation of a state electricity infrastructure authority by passing the Kansas Electric Transmission Authority Act ("Act") and creating the Kansas Electric Transmission Authority ("Authority"). According to the Act, the Authority is responsible for ensuring the reliable operation of the state's integrated electrical transmission system and facilitating the consumption of the state's energy through improvements in Kansas ' electric infrastructure. The Act permits the Authority to accept federal agency grants for operation, and...

The New England Power Pool and the ISO New England finally won FERC approval in April to expand their demand-response bidding beyond real-time to the day-ahead market ¾ the Day-Ahead Load-Response Program or DALRP. This approval joins other recent regulatory recognitions that conservation can often prove the least-cost answer to perceived supply shortages. When the new program goes into effect June 1, a firm-demand New England customer can elect to become a demand resource by registering in one of ISO-NE's load-response programs and then be able to offer demand reduction in the day-ahead...

The California State Assembly is considering the possibility of returning retail choice to the state, after its suspension during the 2000-2001 energy crisis. Assembly Bill 1704 ("AB 1704"), introduced by Assemblyman Keith Richman (R-Granada Hills), would establish a core/non-core retail market in California. Under the proposal, utility customers who use more than 200 KW ("non-core" customers) could choose either to take service from direct-access providers or remain with their investor-owned utility, while individual and small commercial customers would continue receiving service from the...

On April 1, 2005, FERC invited comments on the roles of Regional Transmission Organizations ("RTO"), Independent System Operators ("ISO"), or their market monitors in establishing reference prices to be used to lower or "mitigate" wholesale power prices deemed to be non-competitive. Public comments were due to FERC by May 2, 2005. Several RTOs and ISOs "• including the New York ISO, ISO-New England, California ISO, and the Midwest ISO "• use "conduct and impact" tests in their wholesale day-ahead and real-time electricity markets to determine whether to apply mitigation to assure just and...

On April 8, 2005, the U.S. District Court for the District of Nevada found that the filed rate doctrine prohibited federal and state antitrust and unfair competition claims against sellers of natural gas. In In Re W. States Wholesale Natural Gas Antitrust Litig., the Court affirmed FERC's exclusive authority to determine the reasonableness of wholesale natural gas prices under the Natural Gas Act, even in the context of a price-deregulated natural gas market. The court's decision joins other recent legal decisions protecting the price expectations of market-based sellers of both natural gas...

To integrate wind and other intermittent resources energy more completely into wholesale power markets, FERC has proposed a new rule that would relax the imbalance penalties that generators pay under the pro forma open-access transmission tariff ("OATT"). The proposed new generator imbalance service schedule is intended to address the unique characteristics and constraints of intermittent resources such as wind, solar and run-of-river hydro facilities that rely on the weather, and therefore have a limited ability to predict or control their output. Comments on the proposed imbalance rule are...

FERC announced in April that it would begin auditing power sellers with market-pricing authority for compliance with demanding quarterly reporting requirements. The audits plainly come in response to the dubious court decision in Lockyer v. FERC and signal to all market-price sellers the need to heighten their attention to accurate quarterly reporting both in the past and going forward. Last September, the Ninth Circuit US Court of Appeals ruled that wholesale power sales under a market-based tariff, if not individually detailed in quarterly filings with FERC, were "pragmatically" sales with...

Private power south of the border narrowly escaped in April a congressional audit committee invalidating as unconstitutional their generation and sale of power to the national electricity monopoly, the Comisión Federal de Electricidad ("CFE"). At the request of Mexican President Vicente Fox, the Mexican Supreme Court by a 6-to-5 vote ruled that the audit committee of the opposition-dominated Congress did not have authority to rule on the constitutionality of the power purchase contracts between CFE and private generators. Had the high court affirmed the audit committee and ruled against...

Fallout from the 2000-2001 western energy crisis persisted in April. In a case involving one of the relatively smaller claims to arise out of the crisis, on April 18, 2005, the US Supreme Court denied the petition of the State of California for review of a lower court ruling that only FERC can decide whether the state was unlawfully double-billed for wholesale power. In a claim filed in state court in 2002, California alleged that certain generators violated the state's unfair business competition laws by double-billing the California Independent System Operator ("CAISO") over $100 million...

In its recently published "Progress of New England's Restructured Electric Industry and Competitive Markets: The Benefits of ISOs and RTOs," ISO-New England ("ISO-NE") lauds the long-term performance of its power market. Since the market's inception in 1999, New England wholesale electricity prices have declined by 5.7 percent, after adjustments for fuel costs, and the fuel-adjusted price decline experienced from 2001-2004 was 11 percent. Also during this time, ISO-NE estimates that more than $9 billion was invested in new power plants, and up to $4 billion was invested in transmission...